Director of Public Prosecutions v Terepo
[2024] VCC 387
•4 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-02168
Indictment No. P11248107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEVI TEREPO |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 12 March 2024 | |
DATE OF SENTENCE: | 4 April 2024 | |
CASE MAY BE CITED AS: | DPP v Terepo | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 387 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Causing serious injury recklessly in circumstances of gross violence – Affray – Group attack - Whether all offenders are equally culpable – Where degree of culpability distinguishable - Verdins principles – Early guilty plea
Legislation Cited: Crimes Act 1958, s15B; s195H; Sentencing Act 1991
Cases Cited:R v Guthrie and Watt [2003] VSC 323; DPP v SKJ; DPP v GAS [2002] VSCA 131; R v Verdins (2007) 16 VR 269; R v Mills [1998] 4 VR 235; DPP v Lawrence (2004) 10 VR 125; Hussein v The Queen [2010] VSCA 257; Azzopardi v R (2011) 35 VR 43; Bugmy v The Queen (2013) 249 CLR 571
Sentence: 34 months imprisonment with a non-parole period of 16 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms O Sparrow | Solicitor for the Office of Public Prosecutions |
| For the Offender Terepo | Ms J Hotchkin | Kurnai Legal Practice |
HIS HONOUR:
1Levi Terepo, you are to be sentenced in respect of one charge of causing serious injury recklessly, in circumstances of gross violence in contravention of s15B of the Crimes Act 1958 (“Crimes Act”) and one charge of affray, in breach of s195H of the Crimes Act. Pleas of guilty have been entered in respect of both of the charges. I particularly record that the charge in respect of s15B of the Crimes Act has been pleaded guilty to on the basis of a plea of complicity with the other co-offenders.
2You have also pleaded guilty to one related summary offence being an unlawful assault in contravention of s 23 of the Summary Offences Act 1966.
3The maximum applicable penalties in relation to:
(a) causing serious injury recklessly in circumstances of gross violence, Level 4 – 15 years’ imprisonment or 1,800 penalty units;
(b) affray, Level 6 – five years’ imprisonment or 600 penalty units.
(c) Unlawful assault – three months or 15 penalty units.
4The circumstances of the offending are set out in the Summary of Prosecution Opening Upon Plea, dated 13 March 2024. You agree with the facts alleged in the summary. The offending occurred in the following circumstances. You, Zachariah Overhoff and Valiant Faquhar were at or about Crown Casino in the Melbourne CBD shortly after midnight on 18 June 2022. You and the group you were with, were harassing a number of homeless people on Southbank Promenade in Southbank. The victim in relation to the first charge, Mr Rose, was also present. Mr Rose had come to Melbourne with his employer for a weekend of socialising. Mr Rose was essentially minding his own business when he noticed the group you were with harassing the homeless people. A short interchange between your group and Mr Rose then occurred. You began to chase Mr Rose, in company with Mr Overhoff and Mr Farquhar. A number of unknown co-offenders followed close behind. Your group charged at Mr Rose and brought him to the ground. The group surrounded Mr Rose and proceeded to kick and stomp on him for at least 15 seconds. During the assault, Mr Rose felt immense pain and feared for his life. Your group then left Mr Rose on the ground and began walking back to Crown Casino. Mr Rose was in significant pain, however managed to make it back to his hotel. He was struggling to weight bear and an ambulance conveyed him to The Alfred hospital. He suffered from a fractured right hip and a comminuted fractured left ankle. He was discharged the following day.
5Those are the circumstances in respect of the first charge.
6In relation to Charge 2, this occurred at approximately 1.36am on 18 June 2022. That is, about an hour and a half after the first incident. You, Mr Overhoff and Mr Farquhar, and unknown co-offenders, were at the food court at Crown Casino. At that time, you pushed past the second victim of the night, Mr Coleman. Mr Coleman exchanged short words with you and began walking in the opposite direction. That is, Mr Coleman walked away from you and your group. Mr Overhoff and an unknown co-offender followed Mr Coleman and stopped him from walking further. Mr Farquhar approached shortly afterwards. You then joined the group and immediately punched Mr Coleman in the face. You threw a further three hook punches and then pulled Mr Coleman to the ground. Mr Overhoff kicked Mr Coleman at this time. Mr Farquhar, Mr Overhoff and the unknown co-offender grabbed Mr Coleman by the shirt and dragged him across the ground. Mr Overhoff then struck Mr Coleman four times while he was on the ground. You kicked him twice. A passerby, Ms Gallagher, the third victim of your group on the night, attempted to intervene at this time. Ms Gallagher pushed you away from the fight and you responded by pushing her and slapping her to the jaw with an open palm. Your group then left the food court. This last action directed against Mr Gallagher is the basis for the summary offence of unlawful assault.
The victims’ injuries
7Dealing with Mr Rose first. The injuries to Mr Rose are ongoing. Mr Rose was unable to return to his work in hospitality until February 2023. As of 15 August 2023, his ankle movement was limited, he experienced calf muscle weakness and pain when walking. An MRI scan from 26 September 2023, noted a non-union of the fracture and that Mr Rose was at risk of ongoing foot pain, stiffness and instability.
8As to Mr Coleman and Ms Gallagher, both did not sustain permanent injury.
Investigation
9You, Mr Overhoff and Mr Farquhar were identified through CCTV footage. A warrant was executed against you on 8 June 2023. Mr Overhoff and Mr Farquhar were arrested in Queensland on 13 August 2023 and extradited to Victoria on 16 August 2023. You have eight days of pre-sentence detention available to you, otherwise you have been on bail with reporting responsibilities three times per week.
Gravity of offending
10As to the charge of recklessly causing serious injury in circumstances of gross violence. This is a serious offence. So much can be inferred from the maximum applicable penalty.
11It was put by Mr Casey, counsel for Mr Farquhar on the plea, that his level of responsibility was less than the other co-offenders in relation to charge 1 and that his involvement was limited to standing next to the victim while others, particularly you, Mr Terepo, can be seen engaging in punching and kicking.
12Counsel were invited to provide case law in respect of whether it was possible to assess different levels of culpability where a plea to this charge had been entered on a complicity basis. That is, whether Mr Farquhar and Mr Overhoff could be determined to have a different level of culpability to you, Mr Terepo, who was more actively involved. In considering this issue, it is relevant to note what his Honour Redlich J said in R v Guthrie and Watt.[1] There, his Honour said:
“… One who aids and abets is linked in purpose with the person actually committing the crime and is by word or conduct doing something to bring about or render more likely the crime's commission. … .”[2]
[1][2003] VSC 323
[2](Ibid) at paragraph [30]
13And, then, at paragraph 31, he stated:
“… The circumstances of a particular case may justify regarding an aider and abettor as equally culpable with and sometimes even more culpable than the principal. … .”[3]
[3](Ibid) at paragraph [31]
14It is clear, then, that any suggestion an aider and abettor would receive a lesser penalty is a proposition which must be considered with considerable circumspection.[4] However, in contrast to the facts of DPP v SKJ; DPP v GAS (“SJK”), [5] where it was completely unclear who had caused the fatal injuries, the CCTV footage in this case as to the assaults on Mr Rose, Mr Coleman and Ms Gallagher does allow some analysis of different roles.
[4]DPP v SKJ; DPP v GAS [2002] VSCA 131 at paragraph [47]
[5][2002] VSCA 131
15You, Mr Terepo, were obviously the lead instigator and attacker in respect of the assault on Mr Rose. However, Mr Overhoff and Mr Farquhar, in forming part of the group that chased Mr Rose, perpetrated a circumstance where he was confronted with a number of males physically assaulting him. This simply rendered more likely the crime’s commission, to use the words of Redlich J. In that circumstance, I consider that the gravity of the offending cannot be low. Rather, I consider your actions in beginning the chase, assisting in bringing Mr Rose to ground and participating in the physical assault on him it to be moderate. In support of that finding, I consider that this appears to have been a reasonably spontaneous act brought about by the minor verbal altercation which occurred between Mr Rose and the group. What happened next occurred spontaneously over a very short period of time. While no weapons were used, as a group Mr Rose was chased indicating real intent, then brought to the ground and even after he was vulnerable and defenceless, he was kicked and stomped on.
16Then, as to the incident of affray. I consider the gravity of the offending to be moderate. In this incident, you, Mr Terepo, took a much more active part. While you were not the first to follow and confront Mr Coleman, once again, you were the instigator of the violence. You threw the first punches and began the rolling maul in a public place, setting upon Mr Coleman, dragging him to the ground, punching and kicking him. The CCTV shows you dealing particularly forceful blows and kicks to the victim. But for the intervention of good Samaritans, the consequences could have been dire.
17Lastly, as to the unlawful assault, I similarly consider that your moral culpability for this offending is moderate. At the stage you struck Ms Gallagher, you had been pushed well away from Mr Coleman. Your attack was thwarted and it was quite clear you could not continue with that. Rather you then took it upon yourself to strike Ms Gallagher in the head when all she was doing was attempting to save Mr Coleman. The is further horrible conduct, perpetrated not only against innocent victims but against those actively trying to do the right thing in a difficult situation.
Background personal history
18Mr Terepo you were born in Sydney in February 2003 in a family of 12 siblings.
19Your father had drug abuse problems and you rarely saw him in your childhood. You relocated to Queensland at about 11 with your mother. Shortly afterward you began to communicate with your father and then began visiting with him in Sydney more frequently. Thereafter you alternated between living in the Gold Coast and Sydney.
20You had a troubled period in your teenage years. You were involved in fights at school and were suspended for fighting and skipping class in years 9 and 10. You lost interest in school and began to use cannabis. You were expelled from school prior to year 10 ending. This was at around the age of 15. You left your mother’s care and began living with friends. At 17 you began living with relatives. You were never homeless or in danger.[6] During your childhood you never experienced trauma.
[6]Report of Ms Cokorilo of 3 March 2024 (“Cokorilo”) at page 2
21You spent these years variously working in construction or being unemployed.
22You have only one minor prior charge during this period for which there was no conviction recorded. This was for handling stolen goods.
23At 18 you moved to Melbourne. You began working in construction and even after the offending you have remained working fulltime in this industry.
24You have a history of using illicit substances such as marijuana, cocaine, Valium, Oxycodone and Xanax since the age of 15. After your offending I accept that such abuse has stopped and that you are also abstinent of alcohol.
25You have no past psychiatric history.
26You were 19 at the time of the offending. You have just turned 21.
27After your arrest you were bailed to reside with your Aunty. You have abided by all bail reporting and curfew conditions.
Plea in mitigation
28In comprehensive plea submissions made by your counsel, Ms Hotchkin, there are a number of factors which were said to moderate your sentence. These are, in order:
(a) Your youth. You are only 21 years of age now. You have had only minor interactions with the law. In short, this was said to be the dominant factor in your case, as your prospects for rehabilitation were very strong, particularly given your work history;
(b) Your early guilty plea. There was some debate as to whether or not this was entered at the earliest possible opportunity, but I take note of the fact that you pleaded guilty at a very early stage. You have complied with the conditions of your bail. I note that you expressed your regret for your actions when reporting to Ms Cokorilo in your psychological assessment. Your further participated openly in Koori Court before elders and respected persons of the Aboriginal community. In the course of that hearing, I record that you accepted your behaviour was disgusting and you accepted that Mr Rose was likely to have been terrified by your (and other’s) actions. I accept these are genuine expressions of remorse.
(c) Your prospects for rehabilitation:
(i)you have continued to engage with Youth Support Advocacy Service (YSAS), even after Youth Justice Bail Support was removed in September 2023. Your engagement was said to be “enthusiastic;[7]
(ii)You exited Youth Justice Bail support with an outstanding report which detailed consistently supportive and positive recordings;[8]
(iii)you have full time work in construction and have worked in this position since being bailed. You have received a letter of support from your uncle, who is also your employer;
(iv)you have given up drugs and alcohol;
(v)you have returned to being in the gym as a positive prosocial outlet;
(vi)you have strong family connections and community support. Your mother and aunt participated in Koori Court. Your aunt in particular spoke of your willingness to improve. She also provides you with stable accommodation and is willing to do so in the future.
(d) Your psychological issues, detailed in the psychologist report by Ms Cokorilo. Specifically these were borderline working memory and verbal comprehension. She concluded these matters made decision making harder, reduced judgment and could lead to poor choices.[9] She opined that your risks of general re-offending were low.[10]
(e) It was put that the principles in Bugmy applied given your background to moderate your sentence. I do not accept that submission. It can be accepted that an offender’s background of disadvantage will always be taken into account. However the Bugmy principles apply in situations of profound disadvantage. This is not a case in which I can make such a finding.
[7]A letter from YSAS 7 December 2023 authored by Ms Thompson was tendered on the plea
[8]Youth Justice Supervised Bail Progress Report signed 13 December 2023
[9]Cokorilo at [74]
[10]Cokorilo at [54]
Assessment
29The Crown submitted that a period of imprisonment with a non-parole period was appropriate.
30When I step back to assess your case, I am conscious that there is a real tension in the application of the sentencing principles. As his Honour Batt JA noted in R v Mills,[11] youth and rehabilitation should be “a primary consideration”.
[11][1998] 4 VR 235
31The Court of Appeal noted, however, in SJK issues of punishment and general deterrence also have a role to play. To this extent, what Batt JA said DPP v Lawrence,[12] another case involving causing serious injury recklessly involving gross violence, is relevant:
“… There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.”[13]
[12](2004) 10 VR 125
[13](Ibid) at 125
32I am also aware that principles of parity arise, though this can only have limited application given you will be sentenced in the adult justice system and your co-offenders in youth justice.[14]
[14]Hussein v The Queen [2010] VSCA 257 at [16]
33I accept that principle 6 of Verdins principles applies. That is that prison will have a significant adverse effect on your mental health.[15]
[15]Cokorilo at [85]
34However, in considering your prospects of rehabilitation, I consider your history of behavioural issues and particularly fighting. I balance this against the insight you have begun to display into the behaviour that led to your offending, evident in the report of Ms Cokorilo and your participation in Koori Court, as well as your abstinence from drugs and alcohol.
35As in most cases, all factors that are relevant must be synthesised then. In this particular case, I still do consider that youth and rehabilitation are the most important factors. This is not a case like Azzopardi v R,[16] because you are really a first-time offender, with no subsequent offending, with generally good compliance on very strict bail conditions for a considerable period of time.
[16](2011) 35 VR 43 at paragraphs [53]-[57]
36In those circumstances, particularly with employment available and a very supportive family, rehabilitation remains the primary protective factor for the community. I do not accept that the application of the Verdins principles in your case requires that deterrence, specific and general, can simply be put aside. A length of a sentence can operate as a way to demonstrate to an offender, but also to the broader community, that behaviour like this, visited on innocent members of the community, will not be tolerated.
37For this reason, I sentence you to a period of 28 months on Charge 1. I sentence you to five months on Charge 2. I sentence you to one month on Charge 3. I consider it necessary to cumulate the terms given the separate nature of the offending, noting they are separated in time and by the victims involved. In total, I sentence you to a period of imprisonment of 34 months in prison with a non-parole period of 16 months. I have given you a more lenient non-parole period than usual given your young age and prospects for rehabilitation.
38I do so as it reflects your overall criminality in the two hour period when these offences occurred. This is not normal behaviour for you.
39I indicate that, but for your early plea of guilty, I would have sentenced you to 48 months’ imprisonment, being 39 months on Charge 1 and 7 months on Charge 2 and 2 months on Charge 3.
40I declare eight days of pre-sentence detention.
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